Can a pregnant employee use hazardous chemicals at work?

Employers are concerned about the well-being of employees.  Companies are required to follow hundreds of federal and state safety rules, including OSHA regulations, and are financially responsible for workplace injuries and illnesses suffered by employees. So, it is not surprising that company owners and managers are concerned for the well-being of pregnant employees at work.  What if a pregnant employee wants to continue working even though she is regularly using a hazardous chemical that may cause a risk to her and her unborn child?  Rooms to Go Furniture Corporation, a Florida company with a nationwide network of retail stores and distribution centers, recently settled an EEOC complaint (and agreed to pay $55,000 and provide other relief) to settle a pregnancy discrimination lawsuit (Equal Employment Opportunity Commission v. RTG Furniture Corp. of Georgia, Civil Action No 5:16-CV-00663-BO).  The Company fired a pregnant employee from her job because she was required to use lacquer thinner, and the Safety Data Sheet (SDS) stated that it posed a risk to pregnant women and unborn children.

According to the EEOC’s complaint, the company hired a Chantoni McBryde on June 1, 2015 and assigned her to work as a shop apprentice at the company’s temporary training facility in Dunn, N.C. The job required the use of various chemicals to repair furniture. On June 3, McBryde informed the company’s shop trainer that she was pregnant. Later that same day, McBryde was called into a meeting with the company’s regional shop manager and others and was asked to confirm that she was pregnant. The EEOC said that during the meeting, the regional shop manager showed McBryde a can of lacquer thinner that contained a warning that the contents could potentially pose a risk to a woman or her unborn child, and discussed the warning with McBryde.  The EEOC alleged McBryde was told that because she was pregnant, she could no longer work at the facility.

What can an employer do in such a situation?  Removing a pregnant employee from a job because of a concern for her safety is not permitted under  Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA).  These laws prohibit employers from terminating workers because they are pregnant. In short, pregnant employees have the right to make their own decisions about working while pregnant, including the risks they assume.  First, once the pregnancy is disclosed, the company may speak to the employee about the chemical exposures and workplace safety.  Due to current EEOC accommodation rules, discuss her duties involving those chemicals and if there are ways to minimize her exposure, or temporarily adjust her work.  Second, the company should provide her with a copy of the SDS sheet so that she can discuss the exposure with her doctor.  If there may be a potential health concern, it is up to the woman and her doctor to evaluate.  A company may not impose paternalistic notions on a pregnant employee, even though it wants the best for the employee’s health. Lastly, the company should verify that it is fully complying with the Hazard Communication regulation (1910.1200) under OSHA, and providing all necessary personal protective equipment (PPE) to all employees using these chemicals.

RTG entered into a three-year consent decree requiring it to develop and implement a policy that prohibits pregnancy-based discrimination.  It also requires the company to conduct annual training for employees, supervisors, and managers at certain facilities on Title VII and its prohibition against pregnancy discrimination in the workplace, and provide periodic reports to the EEOC.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR and safety solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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